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This year, the Utah Legislature passed H.B. 141: Recreational Use of Public Water on Private Property. Governor Herbert signed the bill into law, and it will take effect on May 11, 2010. The new law changes the recreational easement recognized in Conatser v. Johnson. This was the Utah Supreme Court decision in 2008 that allowed the public to walk on the private bed of a public waterbody.
What does the law prohibit?
The new law does not allow recreational water users (including anglers, kayakers, tubers, hunters and others) to walk on the private bed of a public waterbody. This means that if you are fishing or recreating in public water that flows over private property closed to trespass, you may not walk on the land beneath the water without obtaining landowner permission.
What is trespass?
To trespass is to enter someone's property unlawfully. Landowners close their property to trespass by posting a notice or otherwise communicating that access is prohibited. Irrigated pastures, cultivated lands and certain fenced areas are presumed closed to trespass. To review Utah's trespass laws, see Utah Code Sections 23-20-14, 76-6-206 and 76-6-206.3.
What does the law allow?
The new law allows you to float on the surface of the water, even if you're floating over private property that is closed to trespass. It also allows you to fish while floating. Your right to float only applies under the following conditions:
•Water volume. The water must have sufficient width, depth and flow to float your vessel.
•Stopping prohibited. You and your vessel must move with the current and not anchor or stop.
•Public water. The water must flow in a natural channel, or it must collect in a natural lake, pond or reservoir on a natural channel.
•Excluded water. The public easement to float does not apply to any of the following waters on private property:
◦A jurisdictional wetland (as defined in 33 C.F.R. 328.3)
◦An impounded wetland, which means a shallow body of water formed or controlled by a dike, berm or headgate
◦A migratory bird production area (as defined in Utah Code Section 23-28-102) What if I encounter an obstacle while floating?
Your right to float includes the following:
•Incidental touching. You may incidentally touch private property as required for safe passage and continued movement of you and your vessel.
•Portage. You may portage around a dangerous obstruction in the water, as long as you use the most direct route that follows closest to the water. Where can I access the water to float and fish?
If you want to fish while floating, you must access the water at a lawful access point. This could include a highway right-of-way, public property or private property with written landowner permission.
Where can I fish without obtaining permission?
There are still thousands of places you can fish without obtaining landowner permission.
You do not need permission to:
•Fish while floating over private property. •Fish on public property where the activity is authorized by the managing agency. This applies to fishing on property owned by the U.S. Forest Service, the Bureau of Land Management, the DWR and other public agencies. •Fish on private property that is not closed to trespass. If possible, try to communicate with landowners before you float over property closed to trespass. It is courteous and always appreciated.
The DWR has also worked with other agencies and private landowners to obtain public access to stretches of the following rivers and streams: Duchesne River, Little Bear River, Ogden River, Provo River (middle section), Salt Creek, Sanpitch River, Spanish Fork River, Strawberry River, Thistle Creek, Weber River and many others. To find a waterbody where you do not need permission to walk the bed, contact the DWR office in the region where you want to fish.
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